Today in the Community: January 6, 2012

Posted Fri, January 6th, 2012 9:50 am by Aaron Tang

For our final discussion topic of the week, we ask you to look into your crystal ball and predict how you think the Court will rule in the Texas redistricting cases. The cases will be argued on Monday, and a quick turnaround is likely with final maps needed by February 1 to be in effect for the state’s primary season.

Some of our favorite comments from yesterday follow the jump:

Jim King–

The idea that using the Legislature’s maps would allow a perpetual “end run” around Section 5 (by remapping in each subsequent legislative session) makes no sense. The only reason that the “prior practice” (i.e. the 2010 maps) cannot be used in 2012 is that the 2010 maps are malapportioned. That’s why an “interim” map is required. If the DC court denies pre-clearance, the San Antonio court will continue with its trial and will draw a fully compliant “remedial” map that would take effect for 2014 and become the new benchmark. If the Legislature redraws the lines in 2013, the new pre-clearance process will be a comparison against the benchmark San Antonio maps. If pre-clearance were not achieved sufficiently early to support the 2014 election, then the benchmark maps would be used. There would be no need for “interim” maps since the benchmark maps will not be malapportioned and thus, no need to give effect to the state’s 2013 maps prior to pre-clearance. Far from a perpetual “end run”, using the state’s maps now only ensures that they get used for a single election pending the outcome of the San Antonio trial (and subsequent appeals).

Franita Tolson–

In NAMUDNO v. Holder, Chief Justice Roberts expressed the concern that section 5 of the Voting Rights Act, by requiring that only covered jurisdictions preclear changes to their election laws, “differentiates between the States, despite our historic tradition that all the States enjoy ‘equal sovereignty.’” This language has been a shadow over the constitutionality of section 5 ever since the case was decided. It is therefore no surprise that the state of Texas goes out of its way in its current filings to present the regulatory regime of the VRA as burdensome, unfair, and most importantly, resulting in a situation in which elections are governed by a court drawn map that completely contravenes the state’s policy choices. The Supreme Court, in resolving Texas’s claims, may not be able to avoid handing down a decision that, like NAMUDNO, narrows the scope of section 5 even if it avoids the constitutional question. Indeed, Texas’s latest reply brief brings the constitutionality of section 5 front and center; at the very least, any outcome that would require the district court to defer to Texas’s non-precleared redistricting maps would weaken section 5’s enforcement mechanism. Unfortunately, this outcome is a distinct possibility in this case because the Supreme Court could view implementation of the interim maps as undermining Texas’s sovereignty over elections, a concern that harkens back to the Court’s reservations about section 5 in NAMUDNO.

In a recent article, I discuss the meaning of state sovereignty in the context of section 5, arguing that states have limited sovereignty over elections given Congress’s authority under the Elections Clause as well as the Fourteenth and Fifteenth Amendments to regulate elections. It is highly doubtful, however, that the Court will consider Congress’s expansive power—and by implication the states’ more limited authority—over elections in allowing the district court’s interim maps to stand. An expansive view of state sovereignty over elections, no matter how erroneous such a view may be, conceivably can encompass a requirement that district courts, already disfavored as a means of drawing redistricting plans, defer to state policy choices in drawing interim maps. That the state’s policy choices emerge from maps that are not precleared may not be dispositive; sadly, the Court could find that this concern is trumped by the alleged federalism costs imposed by section 5 and its perception that the preclearance regime imposes administrative and legal burdens on states that are unsustainable going forward.

Bertrall Ross–

The conventional wisdom after NAMUDNO v. Holder is that the Roberts Court is no friend of Section 5 of the Voting Rights Act. And that seems right given that a remarkable eight justices signed on to an opinion that seemed to indicate that there were at least some doubts (and perhaps strong doubts) about the constitutionality of the Act. And the ninth justice, Justice Thomas, was ready to strike it down then and there. On the basis of these signals, jurisdictions are lining up to challenge the constitutionality of the Act.

It is important, however, not to overstate the signals that the Court actually sent in NAMUDNO. It seems clear that the reason why the so-called four liberals signed on to a majority opinion questioning the constitutionality of a landmark civil rights statute was because of the narrowness of the doubt about the constitutionality of Section 5 expressed in the opinion. Specifically, the majority opinion seemed to exclusively focus its constitutional doubt on whether Section 5 was still constitutional as applied to electoral changes that impact registration and voting. In light of the growth in minority registration and voting over the last forty years to the point in which the Court found black-white parity in some covered jurisdictions, the doubt perhaps has some validity. However, the Court in NAMUDNO never expressed an opinion about the continued constitutional validity of Section 5 as applied to electoral changes that have the purpose or will have the effect of depriving members of minority groups of the opportunity to elect the representative of their choice – changes that dilute the vote of members of minority groups.

The Texas redistricting is alleged to have such a purpose and potential effect and does not at all implicate concerns about vote denial. Even recognizing this distinction between NAMUDNO and the Texas redistricting cases, there is still, of course, the same inherent tension between congressional authority to enforce the Fourteenth Amendment through the preclearance mechanism and state sovereignty (including equal sovereignty) concerns. However, the differences is that the Court in cases involving challenges to the requirement electoral practices that have the purpose or potential effect of diluting the vote be precleared is not balancing congressional authority to enforce the Equal Protection Clause to solve a problem that it deems to no longer exists (problems with disparities in voter registration and voting) against state sovereignty concerns. Instead, in light of the continued racial polarization in voting in covered jurisdictions and the difficulty that members of minority groups continue to face in electing candidates of their choice in non majority-minority districts, the Court has to balance congressional authority to enforce the Equal Protection Clause to solve a problem that still does exists (or at least members of the Court have not yet denied that it does exist) against these same state sovereignty concerns.

Of course, this doesn’t mean that the Court will necessarily resolve this competition of constitutional values by favoring congressional authority. The only point here is that the strength of the sides in the competition in the Texas redistricting case is different that that which was the case in NAMUDNO. And for that reason, I’m not sure we can draw as much as others have suggested from the 8-1 NAMUDNO decision about where the Court may be headed on the question of the facial constitutionality of pre-clearance.

As we know and as Luis Fuentes-Rowher has written in his articles, much of this will likely turn on Justice Kennedy’s view of the continued constitutionality of Section 5. And from the tea leaves of recent cases, and particularly the Section 2 case of Bartlett v. Strickland, I think proponents of Section 5 can be comforted that he is not likely to strike the Act down in the Texas Redistricting Cases (especially given that the question was not adjudicated below, although, of course, that did not stop the Court in Citizens United). He will likely join the opinion that chooses the path of avoidance of the constitutional question.

However, proponents of the VRA will perhaps be less comforted by the likelihood that he will join an opinion that will put a thumb on the scale of state sovereignty at the expense of Section 5. This likely will lead to the result sadly predicted by Franita in which the Court allows the state’s un-precleared plan to stand as the interim plan for the 2012 elections and the slow painful weakening of the Act will likely continue.

So what happens when a case directly implicates the constitutionality of Section 5 as may happen this year? Well, I guess you’ll have to invite me back here for my thoughts!

Nick Dranias–

The Court has been signaling for quite some time that it is concerned about the Voting Rights Act’s tension with the constitutional principle of race neutrality, as well as the VRA’s intrusion into the Elections Clause powers of state legislatures and the Tenth Amendment powers of states and their political subdivisions to structure their internal electoral processes. However, it will probably continue to roll-back the VRA incrementally. I speculate that Northwest Austin Municipal represents the initial phase of constraining the VRA through statutory construction. The Texas Redistricting Cases could also be resolved similarly through a simple clarification of the scope of a federal court’s interim equitable powers, bolstered by statutory construction. But it is also very possible, and perhaps likely, that the Court will now take the next incremental step towards rolling back the VRA and enforce structural constitutional principles relative to the separation of powers. My prediction is based on the fact that thoughtful and influential members of the current court have shown interest in constraining the VRA’s excessive delegation of legislative Elections Clause power to the judiciary. The Texas Redistricting cases seem to present the perfect factual and legal context in which to rule that the VRA violates the separation of powers in this sense. I am also hopeful that the Court might take the next incrementalist step—enforcing substantive constitutional principles—and actually hold that any map redrawn under the VRA based on racialist distinctions must withstand strict scrutiny. But we shall see.

On Friday the justices will meet for their March 23 conference; our "petitions to watch" for that conference will be available soon.

Major Cases

Trump v. Hawaii(1) Whether the respondents’ challenge to the president’s suspension of entry of aliens abroad is justiciable; (2) whether the proclamation – which suspends entry, subject to exceptions and case-by-case waivers, of certain categories of aliens abroad from eight countries that do not share adequate information with the United States or that present other risk factors – is a lawful exercise of the president’s authority to suspend entry of aliens abroad; (3) whether the global injunction barring enforcement of the proclamation’s entry suspensions worldwide, except as to nationals of two countries and as to persons without a credible claim of a bona fide relationship with a person or entity in the United States, is impermissibly overbroad; and (4) whether the proclamation violates the establishment clause of the Constitution.

Gill v. Whitford(1) Whether the district court violated Vieth v. Jubelirer when it held that it had the authority to entertain a statewide challenge to Wisconsin's redistricting plan, instead of requiring a district-by-district analysis; (2) whether the district court violated Vieth when it held that Wisconsin's redistricting plan was an impermissible partisan gerrymander, even though it was undisputed that the plan complies with traditional redistricting principles; (3) whether the district court violated Vieth by adopting a watered-down version of the partisan-gerrymandering test employed by the plurality in Davis v. Bandemer; (4) whether the defendants are entitled, at a minimum, to present additional evidence showing that they would have prevailed under the district court's test, which the court announced only after the record had closed; and (5) whether partisan-gerrymandering claims are justiciable.

Carpenter v. United StatesWhether the warrantless seizure and search of historical cellphone records revealing the location and movements of a cellphone user over the course of 127 days is permitted by the Fourth Amendment.

Conference of March 23, 2018

Johnson v. Stinson Whether Johnson v. Jones precludes a federal appellate court from exercising jurisdiction over a challenge to a denial of qualified immunity that turns not upon disputed facts, but upon the disputed application of the inferences drawn by the district court from the facts, in concluding that a reasonable jury could find a violation of a constitutional right which was clearly established; and (2) whether the U.S. Court of Appeals for the 7th Circuit, sitting en banc, applied an impermissibly broad reading of Johnson v. Jones in vacating the opinion of the U.S. Court of Appeals for the 7th Circuit's three-judge panel and denying jurisdiction over Dr. Lowell T. Johnson's appeal, where the appeal sought review of the district court's determination that a reasonable jury could find that Dr. Johnson violated respondent's right to due process.